Sexual history: a judge’s eye view (Part 1)

It all started with a 1970s rape trial in the case of DPP v Morgan, in which one defendant invited three friends (the other defendants) to his house and said that they could take turns having sex with his wife: he said that she might put up a bit of resistance but that this was just her way of showing how much she was enjoying herself.

The House of Lords ruled that if they honestly believed this story, and honestly believed that she was consenting, then they could not be convicted of rape. If the accused person honestly believed that a woman consented to sex then he could not be convicted of rape, no matter how stupid his belief might be, no matter how unreasonable, and no matter how clear the woman actually made it that she did not want sex.

(As it happened, the jury realised that their story was a pack of lies and the conviction was upheld – so everything was fine, right?)

A perception that this might not be entirely fair led to the Report of the Advisory Group on the Law of Rape (1975; Cmnd. 6352; chair, Mrs Justice Heilbron), which recommended assorted changes including that the defendant’s age-old and much-valued right to cross examine rape victims on their sexual history should be curtailed.

As Lord Slynn of Hadley more recently put it: “Such a course was necessary in order to avoid the assumption too often made in the past that a woman who has had sex with one man is more likely to consent to sex with other men and that the evidence of a promiscuous woman is less credible.”

Enter Section 2 of the Sexual Offences (Amendment) Act 1976.

This changed the law so that the defendant could not bring in any evidence about, or cross examine a victim about, her sexual experience with any person other than the defendant himself… unless the court (i.e. the judge) gave permission. The judge was free to give this permission wherever he was satisfied that “it would be unfair to that defendant” to prevent the victim’s sexual experience being brought in as an issue.

This did not go anything like as far as the Heilbron report recommended. That report recommended that sexual history evidence relating to the complainant should only be allowed in the same situations where evidence of the defendant’s previous convictions or previous conduct would also be admitted.

A defendant’s previous conduct is only allowed to be brought into evidence if it in some way proves or helps to prove his guilt of the crime he is charged with: for example if he did the exact same thing twice before, in the exact same circumstances. Even then, the court has to take into account that evidence of past bad conduct is inherently prejudicial and must weigh up the pros and cons of allowing the evidence. The Sexual Offences (Amendment) Act 1976 did not go anything like as far as this, because the only question for the judge to weigh up was whether it was “unfair to the defendant” if he could not ask about sexual history.

Of course, this left the door wide open for defendants to use this line of questioning or evidence in any case where it could be described as relevant – there was no balancing out its relevance against its prejudicial effect, and no need for the relevance to be anything other than marginal. The result was that once it was determined that the evidence was relevant, it was inevitably treated as unfair to the accused not to admit it. And the previous conduct of the complainant was almost always seen to be relevant in cases revolving around consent – because her credibility was always in issue, and because her consent to any previous sexual encounter was always seen as relevant to the likelihood of her consenting to the sexual encounter in question. So it was still alarmingly common for the accused to be allowed to damage the victim’s credit by evidence or cross-examination about her past sex life.

Adler (Rape on Trial) found in 1989 that 40% of defendants wanted to use sexual history evidence, and 75% of those defendants were given permission. Often the cross-examination went beyond what was needed in terms of relevance and became a smear campaign. Lees (Carnal Knowledge: Rape on Trial) found in 1996 that over 50% of complainants were questioned about sexual history, sometimes without any application even having made to the judge for permission.

All of that is bad enough, but there was not and had never been any restriction at all on cross-examining the complainant on her sexual past with the accused. Given the increasing prevalence of date rape, this has obviously been an increasing problem as more and more defendants try to make the argument that Consenting on Monday + Consenting on Wednesday = Consenting on Friday.

In short – victims were being humiliated in court, every possible “indiscretion” being treated as evidence of promiscuity, every little inconsistency being treated as evidence of dishonesty, every previous sexual act being treated as building up a picture of someone who was happy to consent to just about anything with just about anyone. The law was providing woefully inadequate protection, and the judges were not even applying what little legal protection there was. Nor were they intervening – as they are more than entitled to do – in any evidence or cross-examination that went over into irrelevant smearing. They were letting the victims get screwed all over again.

Back to square one.

Part 2 will cover how the government eventually responded to these issues, and what the judges made of it. It will make interesting reading.